The Rev. Mark Harris endorsed a Republican candidate for the state Supreme Court during his sermon Oct. 7 at First Baptist Church in Charlotte, N.C.

By M. Alex Johnson, NBC News

With the presidential election a dead heat and many other races too close to call, hundreds of religious leaders nationwide are urging their congregations to vote for a specific candidate. They break the law when they do so — that's the point — but it's unclear whether there's any real penalty for pastors who make such endorsements from the pulpit.

About 1,600 pastors across the country violated a 58-year-old ban on political endorsements by churches in October by explicitly backing political candidates in their Sunday sermons, according to the Alliance Defending Freedom of Scottsdale, Ariz., a conservative Christian legal organization behind a campaign called Pulpit Freedom Sunday.

The 1954 law they are challenging prohibits charitable groups, including most churches, from making candidate endorsements, but doesn't bar ministers, priests, rabbis and imams from speaking out on other ballot issues, like voter initiatives, or organizing get-out-the-vote drives and education efforts around elections themselves.

The alliance is seeking to force a court showdown over the constitutionality of the law, violation of which can cost churches their tax-exempt status. Since Oct. 7, the original Pulpit Freedom Day, many pastors who participated in the protest have posted their remarks online or sent them to the Internal Revenue Service, essentially daring the agency charged with enforcing the prohibition to put up or shut up.

So far, the IRS has done the latter.

The Alliance Defending Freedom asserts that it's working to further the rights of all religious groups, but it's an explicitly Christian organization, with a heavy representation of evangelical members and leaders. One clue to its philosophy is that it made it Pulpit Freedom "Sunday" — choosing the Christian Sabbath, instead of more broadly embracing the Jewish Sabbath (Saturday) and the Muslim day of worship (Friday).

So it's no surprise that an unscientific survey of the posted endorsements indicates that they skewed overwhelmingly in favor of Republican presidential nominee Mitt Romney, as in these representative samples:

In a guest sermon at Calvary Chapel in Chino Hills, Calif., Wayne Gruden, a professor and theologian at Phoenix Seminary in Arizona, recommended that "all citizens" vote for Romney "and Republicans in general" (the endorsement begins at 59:58):

Pastor Ken Redmond of Abundant Life Worship Center in Midland, Texas, told his congregation they shouldn't vote for President Barack Obama, saying, "Here is your choice: a Mormon or a Muslim" (the remarks begin at 33:17):

As of Friday, none of the hundreds of pastors who took part in the protest reported hearing back from the government. In fact, the Alliance Defending Freedom says, only one of the churches that have taken part in Pulpit Freedom Sundays over the last five years has been the target of IRS action, and that case was dropped shortly after the IRS lost a separate legal ruling almost four years ago.

The Internal Revenue Code specifies that all section 501(c)(3) organizations are "absolutely prohibited" from taking part in, contributing to or making any statement "in favor of or in opposition to any candidate for public office."

But enforcement appears to have halted completely in early 2009 after Living Word Christian Center of Brooklyn Park, Minn., successfully appealed an audit that the IRS launched after its pastor endorsed Republican Rep. Michelle Bachmann for re-election. The judge ruled (.pdf) that the IRS was technically violating its own regulations in deciding whether to audit churches for banned political activities — because the official making that decision wasn't high enough on the Treasury Department's organization chart.

The IRS, however, isn't acknowledging that it has stopped enforcing the ban on candidate endorsements by officials of 501(c)3 charitable organizations.

Dean Patterson, a spokesman for the IRS, said the official "misspoke," adding: "The IRS continues to run a balanced program that follows up on potential non-compliance, while ensuring the appropriate oversight and review to determine that compliance activities are necessary and appropriate."

Noting that it's barred by law from discussing individual tax cases, the IRS declined NBC News' request for documentation showing that it has taken any action against politicking from the pulpit since then.

But Erik Stanley, senior legal counsel for the Alliance Defending Freedom, said it's clear that the agency is sidestepping the issue.

"We surmise the IRS has shut down all its church audits," Stanley said. As time goes on, he added, "It may become clear that the IRS has taken the position that it will not censor a pastor."

(As it happens, there is a legal way for churches to endorse candidates and still not pay taxes, by registering with the IRS under a different section of the tax code, 501(c)4. But nearly all religious institutions reject that choice because individuals who give money to 501(c)4 groups aren't allowed to claim tax deductions for their donations. Donations to 501(c)3 groups are deductible.)

A matter of politics, not constitutionalityWhile the issue is often cast in terms of separation of church and state, the prohibition on candidate endorsements is a political one, not a constitutional one. If anything, "from a constitutional perspective ... American churches have had every right to endorse or oppose political candidates" since 1819, James Davidson, a prominent religion scholar, wrote in a landmark 1998 paper (.pdf) in the Review of Religious Research.

That was when the Supreme Court ruled — in a case involving banks, not churches — that the federal government had the power to limit taxation of specific enterprises in furtherance of the public good, quoting Daniel Webster's argument that "the power to tax is the power to destroy." Subsequent law extended that philosophy to establish that charitable groups could seek exemption from taxation.

The prohibition on candidate endorsements comes from a different source. It dates only to 1954, and like the 1819 decision, it applies to all 501(c)3 charitable groups, not just churches. Democratic Sen. Lyndon Johnson of Texas inserted it into the tax code as he was fighting off a re-election challenge backed by tax-exempt political foundations that historians have linked with the anti-Communist witch hunts of Sen. Joseph McCarthy.

The measure passed with little debate. Its effect was to muzzle religious leaders, even though "there is no evidence that a religious element played a significant part in Johnson's decision," Patrick L. O'Daniel, an adjunct professor at the University of Texas Law School, wrote in a 2001 reconstruction of the bill's passage in the Boston College Law Review.

Whether Johnson intended it that way or not, religious leaders have argued that the provision is an unacceptable stifling of their constitutional rights.

"This is about restoring biblical authority and a constitutional right for pastors to speak freely from the pulpit without any fear of the government on cultural and societal issues from a biblical perspective. And that includes commenting on the positions of the candidates," the Rev. Dann E. Travis, pastor of Crossroads of Life Church in Binghampton, N.Y., said to cheers from the congregation last week.

The Rev. Rob Rotola, who took part in Pulpit Freedom Sunday at Word of Life Ministries in Wichita, Kan., told NBC station KSN: "The concept of separation of church and state meant that the state was to keep out of the affairs of the church, not that the church was supposed to be silent about things about the state."

But other religious figures see a political angle — specifically, a conservative and evangelical angle — behind the challenge to the law.

The Rev. Barry Lynn, a minister in President Barack Obama's United Church of Christ and executive director of Americans United for Separation of Church and State, said the Alliance Defending Freedom was hiding behind "a fiction that there's a war against Christianity." The Rev. Martin Luther King Jr., he said, managed to preach about politics almost every day of his adult life without ever endorsing a political candidate.

"It's time to get serious about this, because we could end up with a corruption not only of the political process but of the integrity of the genuine prophetic message of churches," Lynn said in a recent interview on State of Belief Radio.

The Rev. Fester Coffee-Prose, youth minister at First Christian Church in Tyler, Texas, also objected, saying politics should be left to politicians, not pastors.

"While we might take stands on certain issues, when it comes to the candidates, the church should be a place where people of diverse backgrounds and diverse beliefs gather," he told NBC station KETK. "I don't necessarily believe that we should be endorsing any one candidate from the pulpit."

Also of concern to some religious leaders is the alliance leadership's connections to conservative organizations and causes: Its president, Alan Sears, was director of Attorney General Edwin Meese's Commission on Pornography during the Reagan administration, and other board members represent the Latino Partnership for Conservative Principles, the anti-abortion activist group Susan B. Anthony List and the conservative evangelical ministry Focus on the Family.

What pastors say
In a survey of 1,000 Protestant ministers, LifeWay Research, the polling arm of the Southern Baptist Convention, found that:

- 87 percent believe pastors shouldn't endorse candidates from the pulpit
- 44 percent have endorsed candidates, but only outside their church roles
- 78 percent disagreed that this election has been "too religious"

Pulpit Freedom Sunday itself was similarly overwhelmingly Christian, with an emphasis on evangelicalism. Working from a list of ministries that signed up in advance, NBC News tabulated that 98 percent were evangelical or otherwise Protestant ministries.

Just 10 Catholic priests took part, defying the U.S. Conference of Catholic Bishops' directive that church leaders "are to avoid endorsing or opposing candidates or telling people how to vote."

Only four Anglican ministers signed up. No imams or traditional rabbis were listed — the three synagogues on the roster are Messianic Jewish congregations, which proclaim the divinity of Jesus.

In a statement, the Council on American-Islamic Relations said it had reminded imams and khateebs (those who give the sermon during Friday prayers) that tax-exempt mosques "cannot explicitly or implicitly endorse candidates." Likewise, the Jewish Council for Public Affairs pointed to its standing directive that "organizations may not rate, endorse or oppose candidates for public office."

The alliance, nonetheless, says its campaign is about a larger question.

"Eventually, we'll have a test case about the constitutionality of the Johnson Amendment," Stanley said. "The IRS has really left pastors and churches no option if they believe they have the right to speak freely from their pulpit."